Rapid expansion of ‘Magnitsky-style’ human rights sanctions regimes underlines need for international coordination and norms

by Marc Limon, Executive Director of the Universal Rights Group Asuntos contemporáneos y emergentes, Blog, Blog

Although July and August are traditionally ‘slow’ months for both governments and the UN, this year they have coincided with an explosion of interest in, and movement towards, so-called ‘Magnitsky-style’ sanction regimes – geared towards holding those guilty of serious human rights violations to individual account.

First out the block in early July was the UK, which on 6 July launched a new Magnitsky-style Global Human Rights (GHR) sanctions regime. The new law allows for asset freezes and travel bans to be imposed on individuals and organisations around the world in response to their involvement in serious human rights violations. It is designed to deter persons from committing human rights violations and abuses, and to hold to account those who do. Writing in a URG blog on 20 July, the UK’s International Ambassador for Human Rights, Rita French, said the new regime will be ‘a powerful new tool to hold those involved in serious human rights violations and abuses to account. This marks the beginning of a new era for sanctions policy and will change the paradigm in which the UK engages on human rights.’

Soon after the launch of the GHR regime, the UK Government moved to sanction 49 individuals and organisations: 25 Russian nationals involved in the mistreatment and killing of Sergei Magnitsky; 20 Saudi nationals involved in the death of journalist Jamal Khashoggi; two high-ranking Myanmar military generals involved in systematic violence against the Rohingya; and two organisations involved in forced labour, torture and murder in North Korea.

Then, in early August, Swiss State Councillor Carlo Sommaruga (a socialist politician from Geneva) announced that he would table an amendment in the Foreign Policy Committee to the law on embargoes (which is due to be debated by the Federal Chambers in September). The aim of the amendment will be to enable Switzerland’s Federal Council ‘to enact measures of coercion with regard to any person who has ordered, controlled, directed or committed serious violations of international humanitarian law or international human rights law or any other form of atrocity.’

Around the same time, in Japan, politicians from across the political spectrum, and from both the upper and lower houses of the Diet, met to discuss a bill that would impose sanctions on foreign individuals and organisations that have committed human rights abuses, with a particular focus on violations committed in the context of Hong Kong’s new national security law. The bill proposes giving Diet members the right to demand that the executive branch open an investigation into cases in which human rights abuses are suspected. Should the investigation confirm that abuses have taken place, then the Japanese Government will have the authority under the bill to sanction individuals or organisations involved by freezing their assets held in Japan, refusing entry into the country or ordering that they be deported.

Shiori Yamao, who jointly leads the new group and is a member of the opposition Democratic Party for the People, a centre-right party that is currently the second-largest in the Diet, said she was ‘very optimistic that the bill that we hope to propose can eventually become law’ – marking a ‘turning point in Japanese diplomacy.’ Ultimately, Yamao wants Japan to have its own full version of the Magnitsky-style acts adopted in the US, Canada, the Baltic States and the UK.

Will the EU also catch the ‘Magnitsky wave’?

Perhaps the most important addition to the growing list of States establishing Magnitsky-style individual sanction regimes would be the members of the European Union (EU). In November 2018, the Dutch Government initiated discussions to this effect. Although progress has been slow (preliminary discussions continue at the European Commission and at Council working group level), the European Parliament continues to press for the adoption of a ‘European human rights sanctions regime.’

For example, in March 2019 it passed a motion calling on the Council ‘to swiftly establish an autonomous, flexible and reactive EU-wide sanctions regime that would allow the targeting of any individual, State and non-State actors, and other entities responsible for or involved in grave human rights violations and acts of systemic corruption.’ This, the Parliament contended, ‘would strengthen the EU’s role as a global human rights actor, notably in its fight against impunity and its support to victims of abuse and to human rights defenders worldwide.’

Like similar regimes established elsewhere, the EU Magnitsky act would allow for the imposition of restrictive measures, notably asset freezes and EU entry bans, against ‘any individual or entity responsible for, involved in or which has assisted, financed or contributed to the planning, directing or committing of gross human rights violations, abuses and acts of systemic corruption.’

Belarus

The potential utility of an EU-wide Magnitsky law (which would also likely be joined by non-EU Nordic States like Norway and Iceland), has been highlighted by the ongoing troubles in Belarus.

While there has been widespread international condemnation of the rigged presidential election to favour the incumbent, Alexander Lukashenko, and the Government’s violent response to the resulting protests, one of the few concrete actions taken by European powers (especially the EU and the UK) has been to impose sanctions on ‘a substantial number of individuals responsible for violence, repression and election fraud,’ while rerouting financial aid from the State to civil society. While the EU’s decision was not based on the as-yet-unfinished European Magnitsky law, it nevertheless reflects a growing understanding of the power of individual sanctions, and of the preferability of such an approach compared to State-focused sanctions that risk hurting the very people (individual rights-holders) that such regimes are supposed to defend.

Due process and rule of law

The EU’s nascent Magnitsky law is also important in a normative sense. One of the problems with the laws adopted in, for example, the US and the UK, is that they may be open to politicisation, selectivity and abuse (though both of these States have included some checks and balances to guard against this). Some of these risks were assessed in a recent URG blog on the subject which can be read here.

Just as the EU’s economic and financial power makes the development of an EU Magnitsky act geopolitically important (by effecting ‘the behaviour of the individuals and entities concerned, as well as [by having] a deterrent effect’), so the EU’s historic attachment to due process and rule of law means that the elaboration of such an act offers an important opportunity to establish relevant norms and, potentially, launch a new ‘gold standard’ for Magnitsky-style sanction regimes.

These preoccupations were clearly evident in the European Parliament’s 2019 Motion, which called upon the Commission and the Council: ‘to clearly define the scope of violations that could include involvement in acts of torture, enforced disappearance, trafficking in human beings, political imprisonment and acts of corruption among other things, as well as to set up appropriate legal avenues through which a listing can be challenged’; to take due note of the ‘importance of Parliament’s scrutiny role over this future regime, notably regarding the scope and definition of the listing criteria, as well as the possibilities for judicial redress’; to base any new legislation on an understanding that ‘the political legitimacy of the regime will largely depend on the capacity of the Council to adopt listings strictly on a rights-based determination’; and to ensure that the new regime is ‘legally sound and in full compliance with the highest possible standards in terms of the protection and observance of due process rights of the individuals or entities concerned,’ and that any decision ‘to list or delist individuals or entities should be based on clear and distinct criteria and directly linked with the crime committed in order to guarantee a thorough judicial review.’

These are all crucial points and are not only relevant for the EU’s emerging Magnitsky regime but rather for all such regimes. With that in mind, it is vital, at this early formative stage of the global Magnitsky ‘wave’, that democratic and pro-human rights States begin to consult and coordinate their work – in order to ensure that these vital new tools remain credible, and to ensure that they serve universal accountability and justice, rather than narrow political or economic interests.


Featured image: “why europe needs Magnitsky Law – EP book launch“, 13 November 2013, copyright ALDE Group

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